Unrivaled 2025: Jennifer and Philippe Selendy of Selendy Gay

You co-led a team to a trial victory of more than $1 billion for Fortis Advisors on behalf of former Auris Health shareholders, in a key M&A earnout and medical robotics dispute against Johnson & Johnson in the Delaware Court of Chancery. As you alleged, J&J, after fraudulently inducing Auris Health to enter into a merger agreement, committed breaches of contract by pushing its own robot rather than seeking to achieve regulatory milestones for the Auris robots. A judge ruled J&J was liable for damages for breach of contract, breach of implied covenant, and fraud. Can you tell us about your trial strategy?

This case involved very complex facts in surgical robotics. Beyond mastering the science, we created multiple strong paths to victory by focusing on (1) J&J’s breaches of the unique and highly negotiated terms of the merger agreement, and (2) the scripted “talk tracks” and false statements made by J&J and its then-CEO, Alex Gorsky, to induce the merger. We built our case in part on J&J’s own witnesses—seven of whom we called affirmatively in Fortis’ case in chief—and its contemporaneous documents, which showed that J&J was “maniacally focused” on acquiring Auris and its then-CEO was unusually involved in closing the deal.

We wanted the court to see why J&J’s executives were willing to promise anything that Auris and its leader—the father of surgical robotics, Dr. Frederic Moll—needed to hear in order to prevent this breakthrough technology from falling into the hands of J&J’s competitors. We focused on timing, and why J&J’s post-hoc excuses based on regulatory changes and technical difficulties were invalid. A key feature of our trial strategy was to showcase J&J’s own lab results establishing the advanced capabilities of Auris’ robots, thus defeating the “made-for-litigation” [quoting judge’s memorandum opinion] defense of supposedly flawed technology.

Can you describe a major hurdle that happened during the course of the trial, and how did you overcome it?

This was one of the best-executed trials we have led. Our preparation for trial literally began upon our engagement six months before filing our complaint. We anticipated J&J’s positions and mapped out strategy long ahead.

But J&J did ambush us with a 512-page expert report in surgical robotics shortly before trial, purportedly in rebuttal to economic and regulatory experts. Their counsel spent over two years and millions of dollars on co-drafting that report.

On major cases, we learn whatever is necessary to rethink every expert conclusion. We had made a very deep dive into surgical robotics, and our lead fact witnesses were true giants in the field. With that foundation, we exhaustively unpacked and dismantled that report—and then took a 25-hour marathon deposition in two days, eliciting major admissions. At trial, on a fast-paced cross-examination, we made J&J’s expert our own: His testimony unraveled and helped corroborate our case.

When did you first know you wanted to be a trial lawyer? What clicked for you?

Philippe: I originally felt I was a natural in philosophy, especially of language. Under financial duress, I instead went to law school, where of course I gravitated to courses in jurisprudence. My first years as a litigator were marked by a constant cognitive dissonance, and that is understated: I was a fish out of water.

Everything changed after I met my partner Jennifer who, unlike me, was a natural-born litigator and simply loved the possibilities and responsibilities of this profession. I now see litigation as the most remarkable fusion of dialogue and opposition, abstract principles and human character, persuasion and introspection, private interests and public good, and endless collaborative and critical learning and theory-building under pressure. Trials, for me, are the apotheosis of the whole field.

What are the major keys to winning over a jury or a judge?

Jennifer: It is crucial to build credibility in every case.  I never overpromise when it comes to evidence and what we will prove at trial.  I also make an effort to demonstrate respect for the court and its rules, for jurors, and even for opposing counsel.

What is the best advice you give young trial lawyers?

Jennifer: “If you want to be a trial lawyer, you have to work with and learn from trial lawyers. I was fortunate to have mentors who were experienced first chair trial lawyers. There is no substitute for that kind of learning.”